Telangana High Court
Mohd Asif Haneef vs Anudeep Malavathu on 19 December, 2023
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL No.276 of 2019
JUDGMENT:
Aggrieved by the Judgment dated 17.08.2018 in C.C.No.251 of 2018
passed by the learned XII Special Magistrate, Erramanzil, Hyderabad, the
present Criminal Appeal is filed.
2. Heard Sri N.Chandra Sekhar, learned counsel appearing on behalf of
the appellant as well as Sri M.V. Suresh, learned counsel appearing on
behalf of respondent No.1.
3. The trial Court dismissed the complaint of the appellant filed under
Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').
4. For the sake of convenience, the parties are referred to as per their
array in C.C.No.251 of 2018.
5. The facts of the case as per the complainant is that the
complainant/appellant is a well reputed Orthopedic Doctor rendered his
services as an Orthopedic Doctor for the Hospital owned by respondent
No.1/accused by name Sri Surya Hospital since February, 2015 to August,
2017 on a monthly remuneration of Rs.40,000/- along with added
remuneration for performing procedures and surgeries. Respondent
No.1/accused had confirmed the monthly and additional payments and also
promised to make such arrangements for payments. He further contended
that in discharge of said debt, the accused issued three cheques bearing
No.257023 dated 01.08.2017 drawn on Eenadu Co-operative Urban Bank
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for an amount of Rs.2,00,000/-, cheque bearing No.000192 dated
10.08.2017, drawn on ICICI Bank for an amount of Rs.2,84,419/- and
another cheque bearing No.000193 dated 10.08.2017 drawn on ICICI Bank
for an amount of Rs.2,84,420/-. Therefore, three cheques totaling to an
amount of Rs.7,68,839/- were given by respondent No.1/accused to the
appellant/complainant in discharge of the legally enforceable debt.
6. The appellant/complainant further stated that when the above
cheques are presented for payment on 07.09.2017 with his Banker Andhra
Bank, Saifabad Branch, Hyderabad, the said cheques were returned unpaid
with an endorsement "Payment stopped by the drawer" on 11.09.2017. As
such, he got issued statutory legal notice under Section 138 of N.I Act, on
25.09.2017, calling upon the accused to pay the cumulative cheques
amount of Rs.7,68,839/- within 15 days and it was received by the accused
and he gave a reply on 08.10.2017 with false allegations but admitted the
liability. As such, the accused is liable for the punishment under Section
138 of N.I.Act.
7. To prove his contention, the complainant himself examined as P.W.1
and got marked Exs.P1 to P12 on his behalf and Exs.D1 to D5 are marked
on behalf of the accused.
8. Basing on the above evidence and after hearing on both sides, the trial
Court dismissed the complaint.
9. The present appeal is filed by the appellant/complainant stating that
the trial Court observed the payments made in September, 2017 vide
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Exs.D4 and D5-Debit Vouchers pertaining to the salary for the months of
January, 2017 to August, 2017. Therefore, it does not form part of the
arrears covered under subject cheques. As there is no dispute regarding
this amount, it need not be mentioned but the trial Court erred in observing
that the complainant failed to mention the payments made in September,
2017 vide Exs.D4 and D5. Further contended that the accused obtained
Exs.D1 to D3-Debit Vouchers for drawing Exs.P1 to P3-cheques towards 'old
due amount' and 'due amount' respectively should have obtained receipt
from the complainant to the effect that the alleged amount covered by
Exs.D4 and D5 was in respect of particular cheque covered by any of Exs.P1
to P3-cheques and that the accused should have stopped payment or got the
cheque referred to him with specific instruction that the amount covered by
particular cheque stood paid.
10. It is further contended that the trial Court erroneously concluded that
Exs.D4 and D5 are with respect to Exs.P1 to P3. The trial Court should
have appreciated that one of the cheques out of Exs.P1 to P3-cheques would
definitely pertain to the balance amount to be paid by the accused and if he
discharged part of the debt under Exs.D4 and D5 debit vouchers and in
such case, the accused would be failed to discharge his burden to rebut the
legal presumptions and consequently, the trial Court should have found the
accused guilty of the offence punishable under Section 138 of N.I.Act.
Therefore, he prayed the Court to set aside the judgment of the trial Court
by convicting the accused.
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11. Learned counsel for the appellant would submit that the trial Court
erroneously acquitted the accused stating that Exs.P1 to P3 cheques are
covered by Exs.D4 and D5 debit vouchers without considering the amount
claimed by the appellant through Exs.P1 to P3 and the said debit vouchers
are not with regard to any of Exs.P1 to P3-cheques. As such, the judgment
of the trial Court is not according to law and it is liable to be set aside by
convicting the accused.
12. On the other hand, learned counsel for the respondent would submit
that in reply notice itself, the accused clearly mentioned about the debit
vouchers and the accused already paid the amount covered under Exs.P1 to
P3. Therefore, there is no illegality in the judgment of the trial Court and
there are no merits in the appeal and prayed the Court to dismiss the
appeal.
13. As seen from the record and on going through the rival contentions,
now, the point for consideration is whether the judgment of the trial Court
needs any interference?
14. The complaint is filed by the appellant/complainant for dishonor of
cheques-Exs.P1 to P3. The complainant is an Orthopedic Surgeon, he
served in the Hospital run by the respondent No.1/accused on monthly
remuneration of Rs.40,000/- not including surgeries and procedures.
Whereas, the accused is due for an amount of Rs.7,68,839/- and to
discharge the same, Exs.P1 to P3-cheques were issued.
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15. The complainant himself examined as P.W.1 and reiterated the
complaint averments in the chief affidavit. In his cross-examination, he
admitted that he received Exs.P1 to P3 cheques from the accused in the
month of August, 2017. As per Ex.D1-debit voucher, he received Ex.P1-
cheque on 26.10.2016 and Exs.P2 and P3 cheques on 03.01.2017 as per
Exs.D2 and D3-debit vouchers. He further admitted that Ex.P1-cheque he
filled up the date on the instructions of the accused. He also admitted that
he has not filed any statement of account or calculation of account to show
that he arrived at the total amount of Rs.7,68,839/- under Exs.P1 to P3. He
further admitted that he received an amount of Rs.20,000/- on 01.07.2017,
Rs.2,00,000/- on 02.09.2017 and another sum of Rs.1,15,000/- from the
accused under Ex.D5 debit voucher. He also admitted that he was not
mentioned in Ex.P7 legal notice to that effect that he received an amount of
Rs.3,35,000/- from the accused.
16. The contention of the learned counsel for the respondent is that the
cheques under Exs.P1 to P3 are already partly paid by the accused which
was not mentioned in his legal notice under Ex.P7. Therefore, the accused
is not liable for punishment under Section 138 of N.I. Act and complaint
itself is not maintainable. He also relied on the Judgment of the Hon'ble
Supreme Court in "Joseph Sartho vs. G. Gopinathan and another 1" in
support of his contention, wherein it has been held that 'as the attempt of
the appellant to encash the cheque without indorsing the amount already
received is perilously bordering dishonesty.'
2008 Online Ker 254
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17. The counsel for the accused while drawing the attention of this Court
in the case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde 2 .
Wherein the Hon'ble Apex Court referred to decision in the case of John
K.John vs. Tom Varghese 3 wherein the Hon'ble Apex Court held that "the
High Court was entitled to take notice of the conduct of the parties. It has
been found by the High Court as of fact that the complainant did not
approach the Court with clean hands. His conduct was not that of a
prudent man. Why no instrument was executed although a huge sum of
money was allegedly paid to the respondent was a relevant question which
could be posed in the matter. It was open to the High Court to draw its own
conclusion therein. Not only no document had been executed, even no
interest had been charged. It would be absurd to form an opinion that
despite knowing that the respondent even was not even in a position to
discharge his burden to pay installments in respect of the prized amount, an
advance would be made to him and that too even after institution of three
civil suits. The amount advanced even did not carry any interest. If in a
situation of this nature, the High Court has arrived at a finding that the
respondent has discharged his burden of proof cast on him under Section
139 of the Act, no exception thereto can be taken".
18. As seen from the record, the appellant has received arrears of salary of
Rs.3,35,000/- on 05.09.2017 and he presented Exs.P1 to P3 cheques on
07.09.2017 to a tune of Rs.7,68,839/-. Therefore, he presented the cheques
more than the amount he is entitled as on the date of presentation and he is
(2008) 4 Supreme Court Cases 54
(2007) 12 SCC 714
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only entitled for Rs.3,35,000/- as on the date of presentation of said
cheques on 07.09.2017. As such, the complainant failed to prove his case
as thee is no legally enforceable under Exs.P1 to P3 cheques.
19. In the present case also this appellant without endorsing the amount
received by him presented the cheques under Exs.P1 to P3 for the total
amount of Rs.7,68,839/-. Further, as observed by the Apex Court conduct
of the party is also important the appellant herein not approached the Court
with clean hands.
20. The accused could rebut the presumption by virtue of Exs.D1 to D5-
debit vouchers and the appellant has not been able to prove the case, as
such, the trial Court dismissed the complaint by acquitting the accused.
Therefore, there are no infirmities in the judgment of the trial Court and
there are no merits in the appeal and the appeal is liable to be dismissed.
21. Accordingly, the Criminal Appeal is dismissed confirming the
judgment dated 17.08.2018 in C.C.No.251 of 2018 passed by the learned XII
Special Magistrate, Hyderabad.
As a sequel, miscellaneous petitions, pending if any, shall stand
closed.
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K.SUJANA, J
DATE:19.12.2023
SAI
